State of Maine v. Chad H. Tozier

MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2015 ME 57

Docket: Aro-14-12

Argued: October 28, 2014

Decided: May 7, 2015

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.*

Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HJELM, JJ.

Dissent: JABAR, J.

STATE OF MAINE

v.

CHAD H. TOZIER

MEAD, J.

[¶1] The State of Maine appeals from an order entered by the trial court

(Hunter, J.) granting Chad H. Tozier’s motion to exclude a self-contained

breath-alcohol test result from evidence based on the court’s determination that the

State failed to produce a qualified witness as required by 29-A M.R.S.

§ 2431(2)(D) (2013).1 We vacate the judgment.

I. BACKGROUND

[¶2] The following facts are taken from the record and are not in dispute.

On August 19, 2012, a police officer certified to operate a self-contained

*

Silver, J. sat at oral argument and participated in the initial conference but resigned before this

opinion was adopted.

1

Title 29-A M.R.S. § 2431(2) (2013) has since been amended, but not in any way that affects our

analysis. P.L. 2013, ch. 459, § 3 (effective Mar. 12, 2014) (codified at 29-A M.R.S. § 2431(2) (2014)).

2

breath-alcohol testing apparatus known as an Intoxilyzer used the device to test

Tozier’s breath-alcohol content. Before testing Tozier’s breath, the officer ran a

calibration check. He then obtained two separate breath samples, and the machine

reported Tozier’s breath-alcohol content as 0.18 grams of alcohol per 210 liters of

breath. The officer issued Tozier a uniform summons and complaint charging him

with criminal operating under the influence (Class D) pursuant to 29-A M.R.S.

§ 2411(1-A)(A) (2014).

[¶3] On September 21, 2012, the State of Maine charged Tozier by

complaint in the District Court (Houlton) with criminal operating under the

influence. Tozier requested a jury trial, and the case was therefore transferred to

the Superior Court (Aroostook County). On or about October 29, 2013, Tozier

sent a ten-day notice pursuant to 29-A M.R.S. § 2431(2)(D) requesting that the

State produce a qualified witness to testify at his trial.2 In response, the State

2

Title 29-A M.R.S. § 2431 (2013) provides:

1. Test results. Test results showing a confirmed positive drug or metabolite presence

in blood or urine or alcohol level at the time alleged are admissible in evidence. Failure

to comply with the provisions of sections 2521 and 2523 may not, by itself, result in the

exclusion of evidence of alcohol level or confirmed positive drug or metabolite presence,

unless the evidence is determined to be not sufficiently reliable.

2. Analysis of blood, breath and urine. The following provisions apply to the analysis

of blood, breath and urine, and the use of that analysis as evidence.

A. A person certified in accordance with section 2524 conducting a chemical

analysis of blood, breath or urine to determine an alcohol level or drug concentration

may issue a certificate stating the results of the analysis.

3

B. A person qualified to operate a self-contained, breath-alcohol testing apparatus

may issue a certificate stating the results of the analysis.

C. A certificate issued in accordance with paragraph A or B, when duly signed and

sworn, is prima facie evidence that:

(1) The person taking the specimen was authorized to do so;

(2) Equipment, chemicals and other materials used in the taking of the specimen

were of a quality appropriate for the purpose of producing reliable test results;

(3) Equipment, chemicals or materials required to be approved by the

Department of Health and Human Services were in fact approved;

(4) The sample tested was in fact the same sample taken from the defendant; and

(5) The alcohol level or drug concentration in the blood of the defendant at the

time the sample was taken was as stated in the certificate.

D. With 10 days written notice to the prosecution, the defendant may request that a

qualified witness testify to the matters of which the certificate constitutes prima facie

evidence. The notice must specify those matters concerning which the defendant

requests testimony. The certificate is not prima facie evidence of those matters.

E. A person drawing a specimen of blood may issue a certificate that states that the

person is in fact duly licensed or certified and that the proper procedure for drawing a

specimen of blood was followed. That certificate, when signed and sworn to by the

person, is prima facie evidence of its contents unless, with 10 days’ written notice to

the prosecution, the defendant requests that the person testify.

F. Evidence that the breath or urine sample was in a sealed carton bearing the

Department of Health and Human Services’ stamp of approval is prima facie

evidence that the equipment was approved by the Department of Health and Human

Services.

G. The results of a self-contained breath-alcohol apparatus test is prima facie

evidence of an alcohol level.

H. Evidence that the self-contained breath-alcohol testing equipment bearing the

Department of Health and Human Services’ stamp of approval is prima facie

evidence that the equipment was approved by the Department of Health and Human

Services.

I. Evidence that materials used in operating or checking the operation of the

self-contained breath-alcohol testing equipment bore a statement of the manufacturer

or of the Department of Health and Human Services is prima facie evidence that the

materials were of the composition and quality stated.

4

produced the officer who administered the Intoxilyzer test at trial, but there was no

other expert available.

[¶4] As the trial was about to begin on November 12, 2013, Tozier filed a

motion in limine to exclude the breath-alcohol test result from evidence. The court

granted Tozier’s motion and issued a final order declaring that the officer was not

qualified as an expert to testify as to the “appropriateness of the quality of the

equipment, the chemicals or other materials involved.” The State received

approval from the Attorney General to appeal and filed a timely notice pursuant to

15 M.R.S. § 2115-A (2014).

II. DISCUSSION

[¶5] The State argues that the court improperly excluded the breath-alcohol

test result because the statute does not require the State to produce expert

testimony in order to have the results of an Intoxilyzer admitted into evidence. The

State contends that subsection D of 29-A M.R.S. § 2431(2) is intended for rural

areas that rely on part-time reserve officers who are not certified to operate a

breath-alcohol testing apparatus. In the scenario suggested by the State, in the

J. Transfer of sample specimens to and from a laboratory for purposes of analysis by

certified or registered mail complies with all requirements regarding the continuity of

custody of physical evidence.

K. The prosecution is not required to produce expert testimony regarding the

functioning of self-contained breath-alcohol testing apparatus before test results are

admissible, if sufficient evidence is offered to satisfy paragraphs H and I.

5

ordinary case, the officer who operated the Intoxilyzer would issue a certificate

containing the results of the test, and then only the officer who conducted the

traffic stop would have to testify. If subsection D were invoked, the officer who

performed the breath-alcohol test would then have to testify as well. In response to

Tozier’s arguments, the State additionally argues that the Confrontation Clause of

the United States Constitution is not implicated when the declarant who

administered the breath-alcohol test is available to testify. We examine the State’s

claims in turn.

A. Qualified Witness

[¶6] We review questions of statutory interpretation de novo.

State v. Lowden, 2014 ME 29, ¶ 13, 87 A.3d 694. “When interpreting a statute, we

look first to the plain meaning in order to discern legislative intent, viewing the

relevant provision in the context of the entire statutory scheme to generate a

harmonious result.” Id. ¶ 14. We strictly construe criminal statutes “to avoid

absurd, illogical, or inconsistent results.” State v. Jones, 2012 ME 88, ¶ 6,

46 A.3d 1125 (quotation marks omitted). “Nothing in a statute may be treated as

surplusage if a reasonable construction applying meaning and force is otherwise

possible.” Lowden, 2014 ME 29, ¶ 14, 87 A.3d 694 (quotation marks omitted).

[¶7] The Maine Legislature has created a set of evidentiary rules, which can

be found at 29-A M.R.S. § 2431, to govern blood, breath, and urine test results in

6

operating under the influence (OUI) cases. Pursuant to subsection 1, such test

results are generally admissible in evidence. Subsection 2 contains subsections

A through K, which pertain to the use of analysis of blood, breath, and urine as

evidence. Pursuant to subsection B, a person qualified to operate a self-contained

breath-alcohol testing apparatus may issue a certificate stating the results of the test

analysis. Pursuant to subsection C, when such a certificate is issued, and duly

sworn and signed, it is prima facie evidence of the following:

(1) The person taking the specimen was authorized to do so;

(2) Equipment, chemicals and other materials used in the

taking of the specimen were of a quality appropriate for the

purpose of producing reliable test results;

(3) Equipment, chemicals or materials required to be

approved by the Department of Health and Human Services

were in fact approved;

(4) The sample tested was in fact the same sample taken

from the defendant; and

(5) The alcohol level or drug concentration in the blood of

the defendant at the time the sample was taken was as stated in

the certificate.

29-A M.R.S. § 2431(2)(C). Thus, unless a defendant makes a demand pursuant to

section 2431(2)(D), no live witness is required to testify in order for the test results

and the facts set forth in subsection C to be admitted in evidence.

7

[¶8] The issue here involves the effect of subsection D on subsection C.

Subsection D states:

With 10 days written notice to the prosecution, the defendant may

request that a qualified witness testify to the matters of which the

certificate constitutes prima facie evidence. The notice must specify

those matters concerning which the defendant requests testimony.

The certificate is not prima facie evidence of those matters.

29-A M.R.S. § 2431(2)(D) (emphasis added). “[Q]ualified witness” is not defined

in the statute.

[¶9] The trial court interpreted “qualified witness” to be synonymous with

“expert witness.” The court reasoned that if subsection D did not require an expert

witness, then subsection K would essentially nullify subsection D. Subsection K

provides: “The prosecution is not required to produce expert testimony regarding

the functioning of self-contained breath-alcohol testing apparatus before test results

are admissible, if sufficient evidence is offered to satisfy [subsections] H and I.”

29-A M.R.S. § 2431(2)(K).

[¶10] Apart from subsection D, the term “qualified witness” is not used

anywhere in section 2431. Subsection E is another ten-day notice provision that

applies only to blood specimens, but subsection E explicitly states that the person

who issues the certificate is the one who is required to testify by the ten-day notice.

It is worth noting that there is no provision within section 2431 that explicitly

requires production of an expert witness or expert testimony. The term “expert” is

8

used in subsection K, but only to establish that an “expert” is not required in

particular circumstances.

[¶11] “If the statutory language is ambiguous, meaning that it is reasonably

susceptible to multiple interpretations, or is silent on a particular point, we will

then consider other indicia of legislative intent including the purpose of the

statute.” Griffin v. Griffin, 2014 ME 70 ¶ 18, 92 A.3d 1144 (quotation marks

omitted). Subsection K was added to section 2431(2) in 19983 and the legislative

history contains one relevant letter sent from the District Attorney for District Six

to the Department of Motor Vehicles. The letter stated a request:

[A]mend sub-section (2)(D) to make explicit what is now implicit, but

ignored by some judges: that the prosecution need not ordinarily

produce expert testimony regarding the functioning of self-contained,

breath-alcohol testing apparatus, before test results are admissible.

Some Superior Court Justices refuse to allow admission of any test

result if we do not produce an expert (such as Bob Morgner) on

demand. Thus, add a sentence at the end of paragraph (2)(D) as

follows: “The prosecution is not required to produce evidence of the

functioning of self-contained, breath-testing apparatus before test

results are admissible, if sufficient evidence is offered to satisfy

subsections 2(G), 2(H), and 2(I).” I realize my language is

cumbersome and perhaps much more simple language will

accomplish this result. But some change is needed. We now

regularly pay for an expert in intoxilyzer cases, and this is a totally

unnecessary expense.

Letter from Geoffrey Rushlau, Dist. Attorney, Me. Dist. Six, to William Dowling,

Dep’t of Motor Vehicles (Jan. 20, 1998). Although the suggested language was

3

P.L. 1997, ch. 776, § 45 (effective July 9, 1998).

9

altered slightly and was added as a separate provision instead of being attached to

subsection D, we think that it is clear that the addition of the language in

subsection K was meant to clarify that expert testimony is not required as a

prerequisite to such evidence being admitted.

[¶12] Section 2431 concerns only evidence and evidentiary alternatives in

OUI cases and does not establish or embellish any elements of the OUI offense

outlined in 29-A M.R.S. § 2411. See State v. Kennedy, 2002 ME 5, 788 A.2d 174.

In Kennedy, the defendant objected to the admission of a breath-alcohol test result

because the officer who conducted the test did not certify it. Id. ¶ 5. The court

admitted the test result because the officer who had administered the test was

available to testify. Id. The officer then testified that he was certified to

administer the test, he waited the appropriate amount of time, the defendant blew a

good sample, the machine was approved by the Department of Health and Human

Services, and the test result was 0.19. Id. ¶ 9.

[¶13] We determined that the testimony provided by the officer in Kennedy

addressed the substance of all five evidentiary requirements listed in 29-A M.R.S.

§ 2431(2)(C). We stated that the five elements of subsection C “do not establish

specific findings that are ‘required’ as a prerequisite to admission of

[a breath-alcohol] test result. Rather, they provide an evidentiary basis for the

10

admission of [a breath-alcohol test] result without the need for the testimony of the

officer when that result is certified.” Kennedy, 2002 ME 5, ¶ 9, 788 A.2d 174.

[¶14] Taking into account the language of the statute, the legislative history

of subsection K, and Kennedy, we conclude that the State is not required to offer

expert testimony regarding the functioning of the self-contained breath-alcohol

testing equipment, so long as subsections H and I are satisfied. The Department

stamps of approval and/or statement of the manufacturer, as referenced in

subsections H and I, provide the foundational requirements for the admission of the

self-contained breath-alcohol test result in evidence. So long as the breath-alcohol

testing equipment bears the required stamps of approval, the State is not required

to offer expert testimony regarding the functioning of the breath-alcohol testing

equipment. See 29-A M.R.S. § 2431(2)(K).

[¶15] Subsection (K) does apply when a ten-day notice is issued pursuant to

subsection D to require the presence of a “qualified witness.” That is, the

defendant may demand that a witness qualified to testify to the matters that are

otherwise covered by the certificate appear and testify concerning (1) his or her

authorization to administer the test; (2) that the testing equipment and materials

were properly stamped; (3) that the sample was in fact taken from the defendant;

and (4) that the test results reflect a sample taken at the time of the test.

29-A M.R.S. § 2431(2)(C). The State provided that qualified witness here by

11

presenting the officer who administered the breath-alcohol test as available to

testify to all of the information outlined above.4 No “expert” witness was required.

B. The Confrontation Clause

[¶16] The Confrontation Clause provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” U.S. Const. amend. VI. We review application of the

Confrontation Clause de novo. State v. Johnson, 2014 ME 83, ¶ 8, 95 A.3d 621.

[¶17] Section 2431 is a “notice-and-demand” statute, which requires that a

defendant must demand a live witness if he desires to have one testify. See

29-A M.R.S. § 2431(2)(D); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 326

(2009). In the absence of such a demand, the State may constitutionally introduce

a sworn certificate in evidence without live testimony. Melendez-Diaz, 557 U.S. at

326. In Melendez-Diaz, the Supreme Court clarified that the Confrontation Clause

applies to written documents and held that a sworn certificate reflecting the

analysis of suspected drugs was admissible only if the declarant who produced the

certificate also testified. Id. at 308, 310-11.

[¶18] Tozier argues that because the officer who administered the test had

no training or expertise beyond that required to operate the machine, i.e., no

4

Adding further support to the State’s argument that a “qualified witness” does not mean an “expert

witness” such as chemist Robert Morgner, it is clear that such an expert witness would be unable to testify

that the sample was in fact taken from the defendant as required by subsection C(4).

12

expertise to testify as to the quality of the equipment, chemicals, or other materials

involved in using the machine, an expert witness who could testify to such

information is required by the Confrontation Clause requirements as discussed in

Melendez-Diaz. Tozier’s argument is not persuasive.

[¶19] In Melendez-Diaz, the Supreme Court discussed both a certificate

produced by a lab analyst and “neutral scientific testing.” 557 U.S. at 310, 318.

The Court stated that “[f]orensic evidence is not uniquely immune from the risk of

manipulation” and that “[a] forensic analyst responding to a request from a law

enforcement official may feel pressure—or have an incentive—to alter the

evidence in a manner favorable to the prosecution.” Id. at 318. The certificate at

issue in Melendez-Diaz consisted of a report rendered by a laboratory analyst

reflecting results he obtained after employing sophisticated laboratory analysis.

Id. at 308. The certificate at issue in this case, by contrast, is a piece of paper

produced by a machine. It reflects no forensic analysis by any person. It simply

reports the results generated by a self-contained breath-alcohol testing machine

that has been duly certified by the Department according to statute. The officer

who operated the machine simply verifies that the machine produced this paper.

The risk of improper manipulation of scientific evidence by a forensic examiner

that concerned the Court in Melendez-Diaz is simply not present here.

13

[¶20] Confrontation Clause jurisprudence is concerned with the absence of

those witnesses whose actions played a role in the generation of test results. In

Bullcoming v. New Mexico, 131 S. Ct. 2705, 2710-11 (2011), the Supreme Court

considered the admission of a report of a laboratory analyst who, like the analyst in

Melendez-Diaz, conducted blood-alcohol testing with a gas chromatograph and

rendered a report. When the prosecution failed to produce the analyst at trial, the

trial court allowed the blood-alcohol report with the analyst’s conclusions to be

admitted in evidence, and allowed another analyst, who was familiar with the

operation of the gas chromatograph, to testify as to the laboratory’s standardized

testing practices. Bullcoming, 131 S. Ct. at 2709. The Court held that, because the

certificate was testimonial, its admission would violate the Confrontation Clause

unless the State could demonstrate that the certifying analyst was unavailable at

trial and that the defendant had a prior opportunity to cross-examine the analyst.5

Id. at 2710. The fact that the substitute witness was an expert who could have

testified about standard laboratory procedures and the general scientific reliability

of the testing apparatus did not affect the Court’s analysis. See id. at 2713.

[¶21] Bullcoming reconfirms the rule of law established in Melendez-Diaz

that the Confrontation Clause guarantees defendants the right to confront the

5

Justice Sotomayor clarified that Bullcoming “is not a case in which the State introduced only

machine-generated results.” Bullcoming v. New Mexico, 131 S. Ct. 2705, 2722 (2011) (Sotomayor, J.,

concurring).

14

individual who creates a certificate that constitutes testimonial evidence. Unlike

such a report drafted by a laboratory analyst who operates sophisticated scientific

testing equipment, however, the only actions reflected in a certificate generated by

a self-contained breath-alcohol machine are the internal actions of the machine

itself.6 The officer who administered the test is the only witness who could be

cross-examined about the administration of the test and whether or not the officer

may have made an error. As noted previously, an expert would have no personal

knowledge of the actual administration of the test and could not testify to those

points.

[¶22] Tozier argues that his rights would be violated if the State is not

required to call an expert because he cannot cross-examine the officer on the

science behind the breath-alcohol testing equipment. This argument finds no

support in the landmark Confrontation Clause cases cited herein.7 Those cases

deal with the offering into evidence of reports deemed to be testimonial because

6

The Court in Bullcoming distinguished between human observations and machine-produced results

for testimonial purposes: “These representations [contained in laboratory analysts’ reports], relating to

past events and human actions not revealed in raw, machine-produced data, are meet for

cross-examination.” 131 S. Ct. at 2714. The Court emphasized that “[the analyst] certified to more than a

machine-generated number.” Id. at 2715.

7

Tozier’s argument is analogous to the argument of the defendant in State v. Ducasse, relating to a

manufacturer’s “[c]ertificate of [c]ompliance” which attested to the scientific integrity of its blood

collection tubes. 2010 ME 117, ¶ 5, 8 A.3d 1252. We rejected a Confrontation Clause challenge,

concluding that the manufacturer’s certificate—much like the Department certificate in the instant

matter—was nontestimonial. See id. ¶ 13.

15

they include the laboratory work and conclusions of an analyst in lieu of the

analyst’s actual testimony. Tozier offers an argument that would significantly

expand the Confrontation Clause jurisprudence by requiring the officer who

conducted the Intoxilyzer test and an expert on the inner workings of the machine

to testify. We decline to adopt such an interpretation.

The entry is:

Order vacated. Remanded for further proceedings

consistent with this opinion.

JABAR, J., dissenting

[¶23] I respectfully dissent. To avoid a violation of the Confrontation

Clause, 29-A M.R.S. § 2431 (2013),8 must be construed as requiring the State to

provide, upon demand, a live witness who can testify about the functioning of the

Intoxilyzer. The only type of witness qualified to provide this type of testimony is

an expert witness. For that reason, I would hold that the trial court’s ruling

excluding the Intoxilyzer results was correct.

[¶24] Test results showing a confirmed alcohol level at the time of the

alleged offense are, by statute, generally admissible to prove impairment.

29-A M.R.S. § 2431(1). “A person qualified to operate a self-contained,

8

Title 29-A M.R.S. § 2431 (2013) has since been amended, but not in any way that affects this

appeal. P.L. 2013, ch. 459, § 3 (effective March 12, 2014) (codified at 29-A M.R.S. § 2431 (2014)).

16

breath-alcohol testing apparatus may issue a certificate stating the results of the

analysis.” 29-A M.R.S. § 2431(2)(B). When duly signed and sworn, that

certificate is prima facie evidence that

(1) The person taking the specimen was authorized to do so;

(2) Equipment, chemicals, and other materials used in the taking of

the specimen were of a quality appropriate for the purpose of

producing reliable test results as determined by the Department of

Health and Human Services;

(3) Equipment, chemicals, and other materials required to be approved

by the Department of Health and Human Services were in fact

approved;

(4) The sample tested was in fact the same sample taken from the

defendant; and

(5) The alcohol level or drug concentration in the blood or urine of the

defendant at the time the sample was taken was as stated in the

certificate.

29-A M.R.S. § 2431(2)(C). In addition, 29-A M.R.S. § 2431(2)(D) provides:

With 10 days[’] written notice to the prosecution, the defendant may

request that a qualified witness testify to the matters of which the

certificate constitutes prima facie evidence. The notice must specify

those matters concerning which the defendant requests testimony.

The certificate is not prima facie evidence of those matters.

Thus, at the defendant’s request, the State must produce a witness to testify not

only as to the procedures that were followed in administering the breath test, but

also as to whether the concentration of alcohol in the defendant’s blood was

17

actually the amount reported by the person administering the test.

See id. § 2431(2)(C)(5).

[¶25] Although subsection D refers only to a “qualified witness” and not to

an “expert witness,” a qualified witness’s testimony, whether based on opinion or

facts, must be founded on knowledge of the workings of the Intoxilyzer. In most

instances, a police officer who is certified to operate an Intoxilyzer will not have

sufficient expertise or training to testify as to whether the concentration of alcohol

in the defendant’s blood actually corresponded to the result reported by the

Intoxilyzer. See 29-A M.R.S. § 2431(2)(C)(5).9 Thus, when the defendant

requests a qualified witness, the State must produce a witness with sufficient

expertise to explain how the Intoxilyzer reads breath alcohol and accurately

converts that reading to a measure of alcohol in the blood. The only type of

witness qualified to testify as to these matters will, of necessity, be an expert.

[¶26] Because of the Confrontation Clause implications, section 2431(2)(D)

must be interpreted to require an expert witness. In deciding the constitutionality

of a statute, we assume that the Legislature acted with knowledge of constitutional

restrictions. Portland Pipe Line Corp. v. Envtl. Improvement Comm’n, 307 A.2d 1,

9

Because the issue of whether the admission of statements or certifications from the Department or

the manufacturer violate the Confrontation Clause is not raised by this appeal, I do not address it. See

29-A M.R.S. §§ 2431(C)(3), (H), (I). We have previously held, however, that a certificate of compliance

from the manufacturer of blood collection tubes in a blood-alcohol kit used to collect a defendant’s blood

sample is nontestimonial and therefore is not subject to the Confrontation Clause. State v. Ducasse,

2010 ME 117, ¶¶ 3, 5, 13, 8 A.3d 1252.

18

16 (Me. 1973). Even if there were any doubt concerning the meaning of the

statute’s plain language, “[a]ll reasonable doubts must be resolved in favor of the

constitutionality of the statute, and if the statute is susceptible to more than one

interpretation we must adopt an interpretation, if one there be, which will render it

constitutional.” Ford Motor Co. v. Darling’s, 2014 ME 7, ¶ 33, 86 A.3d 35

(quotation marks omitted).

[¶27] Although the circumstances of cases involving machine-generated

data pose unique challenges, they raise many of the same concerns that lie at the

heart of Confrontation Clause jurisprudence. See Melendez-Diaz v. Massachusetts,

557 U.S. 305, 315 (2009) (“It is true . . . that ex parte examinations of the sort used

at [Sir Walter] Raleigh’s trial have long been thought a paradigmatic confrontation

violation . . . . But the paradigmatic case identifies the core of the right to

confrontation, not its limits.” (quotation marks omitted)); State v. Crooker,

123 Me. 310, 313, 122 A. 865 (1923) (“[M]ust it not, in the interests of justice, be

the character of the evidence itself which gives the constitutional right?”).

[¶28] Pursuant to the Confrontation Clause, “out-of-court testimonial

statements by witnesses who are unavailable for cross-examination are

inadmissible.” State v. Williams, 2012 ME 63, ¶ 26, 52 A.3d 911. “Only

statements of this sort cause the declarant to be a “witness” within the meaning of

the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821 (2006)

19

(quoted by State v. Metzger, 2010 ME 67, ¶ 14, 999 A.2d 947). “A document

created solely for an evidentiary purpose . . . made in aid of a police investigation,

ranks as testimonial.” Bullcoming v. New Mexico, 131 S. Ct. 2705, 2717 (2011)

(quotation marks omitted).

[¶29] In Melendez-Diaz, the Supreme Court held that “certificates of

analysis,” which stated that a substance recovered from the defendant’s possession

contained cocaine, were testimonial statements subject to the Confrontation

Clause. 557 U.S. at 308, 311. The Court reasoned that, because the certificates

were “functionally identical to live, in-court testimony,” the defendant was entitled

to be confronted with the analysts who tested the substance. Id. at 310-11.

Similarly, in Bullcoming, the Supreme Court held that a defendant is entitled to be

confronted with the analyst who certified that the defendant’s blood contained a

certain level of alcohol. 131 S. Ct. at 2710. There, the Court reasoned that, despite

the reliability of the certification based on machine-generated raw data, the analyst

who performed the test must be made available for cross-examination. Id. at 2715.

[¶30] The Intoxilyzer dispenses with the need to have an analyst conduct

testing on a suspect’s blood in order to determine the concentration of alcohol in

the blood. It effectively replaces the types of analysts discussed in Bullcoming and

Melendez-Diaz. Consequently, the results it generates have become the functional

equivalent of the testimonial statements provided by analysts who examine blood

20

samples in laboratories. This technological development does not obviate the

constitutional guarantee to be provided a meaningful opportunity to test the State’s

evidence by cross-examination. See Melendez-Diaz, 557 U.S. at 317 (citing

Crawford v. Washington, 541 U.S. 36, 61 (2004)); see also State v. Muldowny,

871 So. 2d 911, 913 (Fla. Dist. Ct. App. 2004) (“[O]ne should not have privileges

and freedom jeopardized by the results of a mystical machine that is immune from

discovery, that inhales breath samples and that produces a report specifying a

degree of intoxication.”). Under these circumstances I discern no basis for

distinguishing a document created by technology—here, the Intoxilyzer

results—from a document created by a living person. See Bullcoming, 131 S. Ct.

at 2716 (“[It is not] the role of courts to extrapolate from the words of the

Confrontation Clause to the values behind it, and then to enforce its guarantees

only to the extent they serve (in the courts’ views) those underlying values.”

(alteration omitted) (quotation marks omitted)).

[¶31] Courts in other jurisdictions have reached the opposite conclusion,

deciding that the results of a breath-alcohol test are not subject to the Confrontation

Clause because they are not “statements” made by a live “witness.” See, e.g.,

United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008); United States v.

Washington, 498 F.3d 225, 230 (4th Cir. 2007). Some of these courts have

concluded that machines or instruments are not subject to the Confrontation Clause

21

because they produce results automatically by means of a scientific process, not

subject to human interaction or interpretation. See, e.g., Washington, 498 F.3d at

231 n.3. The logic behind this conclusion, however, is the same logic that the

Supreme Court has rejected as a basis for determining whether evidence is subject

to the requirements of the Confrontation Clause. See Bullcoming, 131 S. Ct. at

2715 (“[T]he comparative reliability of an analyst’s testimonial report drawn from

machine-produced data does not overcome the Sixth Amendment bar.”); Crawford,

541 U.S. at 62 (“Dispensing with confrontation because testimony is obviously

reliable is akin to dispensing with jury trial because a defendant is obviously

guilty. This is not what the Sixth Amendment prescribes.”) (quoted by

Melendez-Diaz, 557 U.S. at 317-18).

[¶32] Nor am I persuaded by the suggestion that Intoxilyzer results must be

characterized as beyond the reach of the Confrontation Clause simply because the

instrument itself cannot be cross-examined. It is certainly true that the Intoxilyzer

instrument cannot respond to questioning in court. See, e.g., Moon, 512 F.3d

at 362 (“[H]ow could one cross-examine a gas chromatograph? Producing

spectrographs, ovens, and centrifuges in court would serve no one’s interests.”).

However, this is precisely why expert testimony about the functioning of the

instrument is constitutionally required. Such testimony serves as a functional

equivalent to cross-examination of the instrument itself. “The central concern of

22

the Confrontation Clause is to ensure the reliability of the evidence against a

criminal defendant by subjecting it to rigorous testing in the context of an

adversary proceeding before the trier of fact.” Maryland v. Craig, 497 U.S. 836,

845 (1990). The Confrontation Clause therefore “commands, not that evidence be

reliable, but that reliability be assessed in a particular manner: by testing in the

crucible of cross-examination.” Crawford, 541 U.S. at 61 (quoted by

Melendez-Diaz, 557 U.S. at 317); see also Kentucky v. Stincer, 482 U.S. 730, 737

(1987) (“The right to cross-examination, protected by the Confrontation

Clause, . . . is essentially a functional right designed to promote reliability in the

truth-finding functions of a criminal trial.” (quotation marks omitted)); Crooker,

123 Me. at 314, 122 A. 865 (“Rebuttal merely arrays testimony against testimony.

Cross-examination seeks to go further and weaken or destroy the testimony on the

other side.”).

[¶33] Where the State seeks to convict a defendant based upon an

instrument’s assertion that the defendant’s blood or breath contains a certain level

of alcohol, the defendant must be provided a meaningful opportunity for

cross-examination regarding the basis of that statement. The State cannot satisfy

that requirement by producing a witness who has no knowledge or understanding

of the scientific basis for the results. See Charles Short, Note, Guilt by Machine:

The Problem of Source Code Discovery in Florida DUI Prosecutions,

23

61 Fla. L. Rev. 177, 198 (2009) (“Unlike a witness, whose reliability could be

challenged by defense counsel on cross-examination, the breath test machine

cannot be ‘confronted’ by a defendant unless the defendant understands how the

machine actually works.”) In a criminal prosecution, the State bears the burden of

proof; it is therefore the State’s responsibility to ensure that the defendant has the

opportunity to test the strength of the State’s evidence through meaningful

cross-examination. See Melendez-Diaz, 557 U.S. at 324. For these reasons, I

would affirm the trial court’s ruling excluding the Intoxilyzer results.

On the briefs:

Todd R. Collins, District Attorney, and Kurt A. Kafferlin, Asst. Dist. Atty.,

8th Prosecutorial District, Houlton, for appellant State of Maine

Christopher K. MacLean, Esq., Elliott & Maclean, LLP, Camden, for

appellee Chad H. Tozier

At oral argument:

Kurt A. Kafferlin, Asst. Dist. Atty, for appellant State of Maine

Christopher K. MacLean, Esq., for appellee Chad H. Tozier

Aroostook County (Houlton) Superior Court docket number CR-2012-137

FOR CLERK REFERENCE ONLY